Any Volunteers?

April 19 1998 3:30 AM

Any Volunteers?

Beware a government calling for acts of beneficence.

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A stickup artist shoves a Smith & Wesson in your face: Your money or your life, he says, by which he means you can surrender your money or you can surrender your slightly bloody money and your life.

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Compare the gunman's direct approach with the "voluntary standards" shakedown practiced by the federal government. In recent years, the government has demanded--I mean, requested--that the computer industry voluntarily accept its encryption standards. The government also made volunteers out of the TV networks, imploring them to rate TV programs to reflect sexual content and violence. (All the networks--except NBC and BET--submitted meekly.) Last October, President Clinton persuaded a number of firearms makers to voluntarily supply trigger locks with new handguns. So much for Mao's thesis that political power grows out of the barrel of a gun.

Why is the government so keen on seeking voluntary standards in the first place? Why doesn't it just pass laws or issue regulations instead? It would if it could. Usually, the request for volunteers signals the government's recognition--or at least suspicion--that it lacks the legal authority to force industry or others to bend to its will. It doesn't want to seek that authority either because it doubts it can muster the necessary votes in Congress or because the Constitution stands in the way.

The war on tobacco offers the most telling example of this sort of extralegal extortion. While negotiating the tobacco settlement last year, the government wanted desperately to bar Big Tobacco from advertising its products. The First Amendment prevents the government from stopping the tobacco companies from advertising, however, so the negotiators worked out a deal. Limit advertising, and we'll cap your liability lawsuits. Fearing that ultimately the tort lawyers would bankrupt them, the tobacco companies agreed to give up their constitutional ace in the hole. Only when Congress reneged on the immunity side of the deal this spring did the industry unvolunteer its First Amendment surrender.

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A nother reason the government prefers coercion--I mean, persuasion--over legislation is that a law formalizes the power relationship between the government and the governed. A law provides the governed with the independent venue of the courts for whatever arguments might unfold. The last word a bureaucrat wants to hear from the courts about a new regulation is "unconstitutional."

Yet another advantage: Laws can be repealed, but voluntary standards are forever. Seagram Co. learned this lesson the hard way last year when it abandoned the five-decades-long voluntary agreement to keep liquor ads off television. Rep. Joe Kennedy II, D-Mass., responded by introducing the "Just Say No Act," banning the ads outright. Observers gave Kennedy's bill little chance of passing, but Seagram found itself flummoxed anyway. The networks and most stations refused to sell Seagram air time because they feared liquor ads would prod Congress into investigating the proliferation of beer ads on television. Millions of dollars of ad revenue would be lost if Congress chose to regulate beer ads or, worse yet, proposed new voluntary standards.

Some industries embrace voluntary standards as a way to dodge more onerous government regulation. Currently, commercial Web publishers think they've staved off Federal Trade Commission regulators by establishing voluntary privacy standards for online users. (Slate is one such publisher. Click here to read its privacy statement.) The FTC completed a survey of Web policies and practices and will deliver its report to Congress in June. Other industries, especially pharmaceutical and medical-device companies, love to wear voluntary regs as a beard and use them to rat out the competition. "Oh, look, we're in compliance with the voluntary regulations, but Company X isn't."

But bowing to voluntary standards doesn't automatically get a company off the government's hook, either. When dozens of youngsters found themselves either strangled or entrapped in the rungs of their bunk beds, the American furniture industry and the federal Consumer Product Safety Commission worked together to establish a set of voluntary safety standards. The two sides agreed on guardrail design standards and provided warning notices for the proper use of the beds (such as not letting children younger than 6 use them). The CPSC presented the industry with a Commendation for Product Safety in 1996 for its cooperation, and commission Chairwoman Ann Brown boasted about its relationship with the bed makers. "We are a regulatory agency," she said, "but we prefer to work voluntarily with industry."

Today, the industry probably regrets having cooperated. Even though 90 percent of all new bunk beds sold conform to the voluntary standards, Newsday reported last month that the commission's staff is now recommending mandatory standards. Mandatory standards enlarge government power to penalize makers who don't abide by the rules and also give U.S. Customs the right to reject imports that don't conform. Having previously agreed to voluntary standards, the furniture industry finds itself stuck in the regulatory maw. No wonder the first thing you learn in the military is to never volunteer.

The corrupting thing about compulsory voluntarism is that it preys on the high-minded to the benefit of the unscrupulous. It turns government suggestions into veiled threats and devalues true voluntarism. At its worst, it can kick up a stench that would have made George Orwell gag.

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